Transcript Mgmt 383 - Directory Viewer

Mgmt 383
Chapter 4
Legal Framework for Equal
Employment
Fall 2008
Semantics: Diversity, EEO and
Affirmative Action
• EEO - individuals should have equal treatment in all
employment-related actions.
• Diversity - recognizing the differences among people.
• Discrimination - recognizing differences among
items or people.
• Unlawful Discrimination – considering race, color,
religion, sex, or national origin of an individual when
making an employment decision.
• Affirmative Action – employers are urged to hire
people based on underutilized protected class, to atone
for historical discrimination.
Equal Employment Opportunity
Laws
• The HR activity that affects all other HR
activities is regulatory compliance with
Equal Employment Opportunity laws and
regulations.
• Title VII even trumps NLRA (Bennett v.
Alexander-Denver)
Major US Employment Laws
•
•
•
•
•
•
•
Civil Rights Act of 1964
Civil Rights Act of 1991
Executive Order 11246
Equal pay Act of 1963
Pregnancy Discrimination Act of 1978
Americans with Disability Act of 1990
Immigration Reform & Control Act of 1986
Civil Rights Act of 1964
• Title VII - Equal Employment Opportunity
• It shall be an unlawful employment practice for an
employer:
• (1) to fail or refuse to hire or to discharge any
individual or otherwise to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of
such individual’s race, color, religion, sex or
national origin; or
Civil Rights Act of 1964
• (2) to limit, segregate, or classify his employees
or applicants for employment in any way which
would deprive or tend to deprive any individual
of employment opportunities or otherwise
adversely affect his status as an employee,
because of such individual’s race, color, religion,
sex or national origin.
Source: 42 U.S.C. § 2000e-2(a).
Protected Classes under EEO
Laws
•
•
•
•
•
•
•
Race
Color
Religion
Sex
National origin (Ethnicity)
Age (40+) (ADEA)
Disability (ADA)
Title VII
Practices that can result in
Discrimination
•
•
•
•
•
•
•
•
Recruiting
Selection
Promotions
Transfers
Layoffs
Training
Wages
Benefits
• Terminations
• Work assignments
• Working
conditions
• Apprenticeships
• Performance
Appraisal
Employers Covered Under
Title VII
• Private sector employers with 15 or more
employees.
• All educational institutions (public or private).
• All labor unions with 15 or more members.
• All employment agencies (public & private).
• All state and local governments.
• All joint (labor-management) committees for
apprenticeship and training.
Two Forms of Discrimination
under Title VII
• Disparate Treatment-intentional
discrimination. Members of a protected
class are treated differently.
• Disparate Impact-unintentional
discrimination. Facially neutral
requirement causes substantial
underrepresentation of protected class
members.
Three Stages of a Disparate
Treatment Case
I. Prima Facie Case (shifts the burden to
the employer)
II. Employer’s Rebuttal
III. Complaining Party's Rebuttal
Prima Facie Case (Selection)
(1) Complaining party is a member of a protected
class.
(2) Complaining party was qualified & applied for
(or held) the job in question
(3) Complaining party was subjected to an adverse
action
(4) Similarly situated individuals not from the CP’s
protected class with fewer or equal qualifications
were not subjected to the adverse action
Disparate Treatment
• Employer defenses for disparate
treatment:
• Legitimate nondiscriminatory reason
for the decision.
• Bona fide occupational qualification
(BFOQ).
Bona Fide Occupational
Qualification
• BFOQs are permitted only for:
• Sex
• Religion
• National Origin
• There are no BFOQs for race.
Disparate Treatment
• Employee’s rebuttal of the employer
defense.
• Employee may still prevail if he or she
can show that the employer’s legitimate
nondiscriminatory reason was pretextual.
Equal Employment
Opportunity Commission
• Equal Employment Opportunity Commission
(EEOC):
• Enforces Title VII, ADA, Equal Pay Act, ADEA, §
501 Rehabilitation Act.
• Investigates EEO Complaints:
• Reasonable cause (5.3% in 2006).
• No reasonable cause (61.2% in 2006).
• Dismiss (16.6% in 2006).
• Settlements (11.4% in 2006).
• Withdrawals (5.5% in 2006).
Disparate Impact
• Disparate Impact (unintentional
discrimination)
• A facially neutral selection criterion has
the effect of disqualifying a
disproportionate number of protected
class members.
• Under UGESP, this is usually
demonstrated by a manifest statistical
imbalance.
Disparate Impact
• Methods for establishing statistical
imbalances:
• Two or three standard deviations.
• Four-Fifths Rule.
• The most common under the Uniform
Guidelines on Employee Selection
Procedures is the Four-Fifths Rule.
Four-Fifths Rule
Selection rate
of the protected < .8
class
Selection rate
of the group
with the highest
rate
Four-Fifths Rule
A company requires all applicants to pass an
achievement test. Of the 181 white applicants, 105
pass. Of the 102 Hispanic applicants , 46 passed.
46 = .45 105 = .58
102
181
.45/.58 = .777
.777 < .8
Four-Fifths Rule
Now assume that: 105 of the 181 white applicants pass
and 49 of the 102 Hispanic applicants pass.
49
105
= .489
= .58
102
181
.489/.58 = .84
.84 < .8
Employer Defenses for Disparate
Impact
• Challenge complaining parties statistics.
• Demonstrate that the practice causing the
disparity is a business necessity/job-related.
• Job-relatedness is established through a process
known as validation.
Civil Rights Act of 1991
• Major Provisions of the Civil Rights
Act of 1991
• Prohibits race norming.
• Places burden of proof on complaining parties
initiating disparate impact charges.
• Provides for extraterritorial application of
Title VII.
• Provides for jury trials.
Race Norming
80
70
60
90
+30
A
S
I
A
N
50
+10
+20
W
H
I
T
E
B
L
A
C
K
H
I
S
P
A
N
I
C
Mean test scores by EEO category. All group scores are adjusted
by the difference in mean scores.
+40
A
M
E
R
I
N
D
Punitive & Compensatory
Damages Under CRA 1991
• Provides for punitive & compensatory
awards:
Size of Firm Max. Award
15-100
101-200
201-500
>500
$50,000
$100,000
$200,000
$300,000
Pregnancy Discrimination
• Pregnancy Discrimination Act of 1978
amended Title VII to include discrimination on
the basis of pregnancy, child birth, or related
medical conditions.
• The intent of this statute is to ensure that
pregnancy is treated like any other medical
related condition in the workplace.
(42 U.S.C. Section 2000e(K))
Pregnancy Discrimination
• Prima Facie Case:
• (1) she was pregnant.
• (2) she was qualified for the job.
• (3) she was subjected to an adverse employment
decision.
• (4) there was a connection between her pregnancy
and the adverse employment decision.
Source: Boyd v. Harding Academy of Memphis, Inc.,
88 F.3d 410, 413 (6th Cir. 1996)
Sexual Harassment
• To be discussed in detail in Chapter 5
Americans with Disabilities
• Creates a new protected class, qualified
individuals with a disability.
• Requires reasonable accommodation.
• Extremely ambiguous and broad.
Americans with Disabilities
• Americans with Disabilities Act of 1990
(ADA) Title I prohibits employment-related
discrimination against qualified individuals
with disabilities.
Qualified Individuals with a
Disability
• Two criteria must be met if the ADA is to apply
in an employment situation:
• The individual must be disabled. As defined
in the ADA.
• The individual must be qualified. He or she
must be able to perform the essential job
functions with, or without, reasonable
accommodation.
Who is Disabled?
• Has a physical or mental impairment
which substantially limits one or more of
an individual’s major life activities.
• Has a record of such impairment.
• Is regarded as having such impairment.
Conditions That Have Been
Treated As Impairments
• Conditions that have been declared
“impairments” under the ADA:
• Allergies
• Morbid obesity
• Color blindness
• Facial disfigurements
• AIDS
Reasonable Accommodation
• Reasonable Accommodation- a
modification or an adjustment to the work
environment that enables a qualified
individual with a disability to perform the
essential job functions.
• An accommodation is not reasonable when
it places an undue hardship on the
employer.
Undue Hardship
• Undue Hardship:
• Cost of the accommodation.
• Size (number of employees).
• Number and type of facilities.
• Composition and structure of workforce.
• Not required to change essential job functions
(the paraplegic policeman). This does not apply
to marginal job functions.
ADA Restrictions on Medical
Information
• No pre-employment medical exams.
• Cannot ask any candidate during an
interview about current or past medical
conditions.
• All medical information (post-employment)
must be kept under the strictest
confidentiality.
• Medical files must be kept separate from
personnel files.
Age Discrimination
• Age Discrimination in Employment Act of
1967 (ADEA) makes it unlawful to
discriminate in the terms and conditions of
employment on the basis of age.
• 40 years-old or older.
• Does not protect against:
• Poor performance.
• Inability to perform assigned tasks.
• Disparate Impact is available in ADEA
litigation Smith v. City of Jackson 125 U.S.
1536 (2005).
National Origin & English-Only
Rules
• English-Only work rules
• Must be justified.
• Cannot create a universal prohibition.
• Must describe consequences for
noncompliance
• Must be communicated to all employees.
Source: Garcia v. Spun Steak, 13 F.3d 296 (9th Cir. 1993)
Immigration Reform and
Control Act
• The Immigration Reform and Control Act
(IRCA) of 1986
• Employers must assure that employees hired are
legally authorized to work in the U.S. within 3
business days of hiring.
• However, an employer who requests employment
verification only for individuals of a particular national
origin, or individuals who appear to be or sound
foreign, may violate both Title VII and IRCA.
• Verification must be obtained from all applicants and
employees and not just some.
Verification Requirements Under
IRCA
Both Employment
Authorization and
Identity:
U.S. Passport
Cert. of U.S. Citizenship
Cert. of Naturalization
Resident Alien Card
(photograph of the
individual)
Foreign Passport with
the Authorization of the
Attorney General to
Work in the U.S.
Employment
Establishing Identity
Authorization Only:
Only:
Social Security Card
State Driver’s License
U.S. Birth Certificate
State Identification for
those under Age 16
Other Documentation
Authorizing
Employment in the U.S.
Approved by the
Attorney General
IRCA Penalties for
Noncompliance
Knowingly Recruiting and
Hiring an Undocumented
Workers
Failure to Comply with
Documentation/ Verification
Requirements
1st Offense
$ 110 - $1,100
$ 275 - $2,200
2nd Offense $2,200 - $3,300
3rd Offense $3,300 - $11,000
Pattern of Offenses $3,000 and 6
months imprisonment
Immigration Reform and
Control Act
• The Immigration Reform and Control Act
(IRCA) of 1986
• Employers who impose citizenship requirements or
give preferences to U.S. citizens in hiring or
employment opportunities may violate IRCA (but
not Title VII).
Illegal Aliens and Title VII
• Though illegal aliens have no legal right to be in the
US, once there are here they are protected under Title
VII. Espinoza v. Farah Mfg. Co., 414 U.S. 86, 95, (1973)
• Title VII protection from unlawful discrimination of
"any individual," extends to aliens (legal or illegal).
• NLRA: Sure-Tan, Inc., v. NLRB 467 U.S. 883 (1984).
• FLSA: Patel v. Quality Inn South, 846 F.2d 700, 706 (11th
Cir. 1983), cert. denied, 489 U.S. 1001, 109 S. Ct. 1120
(1989.
• Equal Protection Clause Amend XIV: Plyler v. Doe, 457
U.S. 202 (1982).
Requirements for Immigrants &
Foreign-Born Workers
• Visas & Work Permits
• Insure that the worker has authorization to work in the
US:
• H-1B for professional employees (good for 6 years).
• L-1 for intra company transfers.
• SSAN and employee name mismatches
•
•
•
•
•
Unreported name change.
Marital status change.
Stolen identity.
Clerical error.
Fraud (likely an illegal alien).
USERRA
• Uniformed Services Employment and
Reemployment Rights Act (USERRA) of
1994.
•
•
•
•
•
•
Leaves of absence while called to active duty.
Return to job or comparable job.
Prompt reemployment upon return.
Protection from discharge or retaliation.
Continuation of health care.
Continued seniority rights.
Sexual Orientation
• No Title VII Protection for:
• Homosexuals - Simonton v. Runyon, 232 F.3d 33; (2nd
Cir. 2000); Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d
257 (3rd Cir. 2001); Wrightson v. Pizza Hut of Am., 99 F.3d
138 (4th Cir.1996); Kirkpatrick v. Seligman & Lutz, Inc., 636
F.2d 1047 (5th Cir. 1981); Dillon v. Frank, 1992 U.S. App.
LEXIS 766 (6th Cir. 1992); Spearman v. Ford Motor Co.,
231 F.3d 1080 (7th Cir. 2000); Schmedding v. Tnemec Co.,
187 F.3d 862 (8th Cir. 1999); Osborne v. Gordon &
Schwenkmeyer Corp., 2001 U.S. App. LEXIS 11381 (9th Cir.
2001).
State Laws & Sexual Preference
• Seventeen states plus the District of Columbia have
laws prohibiting sexual orientation discrimination in
both private and public jobs:
California (1999)
New Hampshire (1997)
Connecticut (1991)
New Jersey (1992)
Hawaii (1991)
New Mexico (2004)
Illinois (2006)
New York (2003)
Maine (2005)
Rhode Island (2001)
Maryland (2001)
Vermont (1992)
Massachusetts (1989)
Washington (2006)
Minnesota (1993)
Wisconsin (2001)
Nevada (1999)
Content Validity
• The best employer’s rebuttal: The criterion creating
the imbalance is a business necessity (job-related).
• Validity - the extent to which a test actually measures
what it purports to (usually job performance).
• Content Validity - an actual sample of the work
to be performed.
• Vestibule training.
• Must be a “fair sample” of the work to be
performed.
Criterion-Related Validity
• Criterion-Related Validity - how well the
employment requirement accurately predicts job
performance.
• Predictive Validity - uses new hires to provide
data.
• Concurrent Validity - uses current employees
to provide data.
Construct Validity
• Construct Validity - must show a
correlation between an abstract
characteristic and job performance.
Leadership
Assessment
Test
Leadership Style
• Most difficult validation to perform.
• Actually two-in-one.
Managers’
Performance
Equal Employment
Opportunity Commission
• Agency: Independent
• Enforces:
•
•
•
•
•
Equal Pay Act of 1963
Title VII of the Civil Rights Act of 1964
Age Discrimination in Employment Act of 1967
§§ 501 & 505 of the Rehabilitation Act of 1973
Title I and Title V of the Americans with Disabilities
Act of 1990
• Civil Rights Act of 1991
Office of Federal Contract
Compliance Programs
• Agency: Department of Labor
• Enforces:
• E.O. 11246
• Revised Order No. 4 (41 C.F.R Part 60-2)
Charges Filed
Deferred to FEPA
EEOC Processes Complaint
Interviews Complaining Party (CP)
Requests Information from Respondent
(May Include On-Site Interview)
Investigator Analyzes Evidence and Drafts
Summary of Evidence
Pre-Determination Interview
(Usually With Party That the Decision Will
Probably Rule Against)
EEOC Issues Letter of Determination
No Cause
(No Further EEOC
Involvement)
Note: CP may still
request a
Permit to Sue
Reasonable Cause
(EEOC will attempt to settle
Charge informally through
Conciliation)
Unsuccessful
Conciliation
EEOC or CP
Has Right to
Bring Suit
Successful
Conciliation